G. PURUSHOTHAM RAO Vs. DODDA MALLAIAH

JUDGEMENT

(1.) This is a petition under section 91 of the Hyderabad Tenancy and Agricultural Lands Act (which will hereafter be referred to as the Act) to revise the order of the Additional Collector, Karimnagar dated 30-9-1958. The petitioner is a landlord holding the patta of S. Nos. 465 and 466 situate in Vedera village in Karimnagar Taluk. These lands are more than Ac. 23-00 in extent and were leased out to four persons and Dodda Mallayya, the respondent herein, is one of them. The three others have surrendered their rights and the petitioner has no further claims against them. Dodda Mallayya alone, it is alleged, has failed to pay the rent for the years 1951-52 and 1953 as a result of which the petitioner was obliged to serve a notice on 18-6-1954 terminating his tenancy under section 19 (2) of the above said Act. The respondent in reply notice denied the tittle of the petitioner on 5-7-1951, claimed that he was the tenant of one Manohara Rao, the owner of that land. Such being the attitude, the petitioner had no other recourse than to apply to the Tahsildar under Section 28 for ejectment of the said tenant and also for the recovery of rent for a period of three years beginning from 1951. The same pleas were taken before the Tahsildar by the respondent as in his reply notice. He took also a plea in the alternative that the rent agreed was only Rs. 5/- per acre, that the landlord was not entitled in law to any rent in excess of that rate and that the tenant has even paid off the agreed amount in the year 1952 itself. The Tahsildar who enquired into the matter came to the conclusion that the respondent is the tenant of the petitioner, that the rate of rent agreed is not open to question as the petitioner did not take any steps under section 17 towards fixation of reasonable rent. Thus holding he passed a decree for three years rent claimed. Besides he gave a decree with regard to the rent which accrued due subsequent to the petition. Thus in all he awarded rent for 5 years at the rate of Rs. 10/- per acre and ordered eviction.

(2.) This order was challenged by way of appeal. The Additional Collector found that the petitioner had complied with the provisions of section 19 (2) before he applied for eviction under section 28. He also found that the payment pleaded by the tenant is not correct and therefore the petitioner is entitled to the rent for three years. But on question of the agreed rate of rent, he came to the conclusion that it was not consistent with the provisions of Section 11 and so any amount in excess of the rate fixed under section 11 should not have been granted to the landholder. He further opined that it was not competent for the Tahsildar to have passed a decree for a period more than three years in view of the provisions of Section 28 (2) and that the Tahsildar beside ought to have, before ordering ejectment, given an opportunity to the tenant to pay the rent and it was only after the expiry of 90 days time as contemplated by section 28, he could validly pass an order of ejectment. With these findings, he remanded the case with a direction that the Tahsildar should follow the procedure laid down in the first part of section 28. It is this order that has been challenged in this revision.

(3.) A preliminary objection has been raised by Mr. Anantareddy appearing for the respondent that the order of remand not being a final order, a revision petition against it under the terms of section 9 of the Act is not competent. In support of this contention he has relied on two cases decided by this court, one of which is the unreported case of Lokshmi Ananthamma v. Shaik Imam, C.R.P. No 692/1957 dated 24-4-1959 and the other is Yerraboth Sathiah v. Edla Challaiah, 1960 A.L.T. 191. As against this, the petitioner relied on a Division Bench casein Venkayya v. Venkatarama Rao, A.I.R. 1956 Andhra 126 and the Supreme Court decision in Gurudwara Prabhandak Committee Amritsar v. Shiv Ratan Deo Singh, A.I.R. 1955 S.C. 576. Section 91 so far as it is relevant for this purpose reads thus:-